The federal government of
the United States has thoughtfully provided these authors with a third
example of this useful term. United
States v. Leal-Del Carmen, 2012 WL 4040253 (9thCir. Set. 14,
2012), decision available here.

Facts: Leal-Del Carmen was one of twelve
undocumented aliens found hiding near the border. Id. at *1. (At least) four aliens were interviewed; three
identified Leal-Del Carmen as the smuggler. Id.
The fourth alien told agents – three times – that Leal Del-Carmen had not given orders to the group. Id. Before Leal Del-Carmen was appointed
counsel this exonerating witness was deported. The three inculpatory alien witnesses were kept in the U.S.. Id.

The district court refused to
dismiss the indictment, refused to admit the video of the exculpatory witness’s
statement, and refused to give a missing witness instruction. Id.

Leal-Del Carmen was charged with
alien smuggling, and the jury deliberated over two days before delivering a
split verdict. Id. at *2.

Issue(s): “May the government deport an illegal
alien who can provide exculpatory evidence for a criminal defendant before
counsel for that defendant has ever been appointed? We believe the answer is
self-evident, as the government recognized in an earlier case where it moved to
vacate a conviction after it deported witnesses whose testimony would have
exculpated defendant.” Id. at *1.

Held: “The
government’s wrongful deportation of a witness with exculpatory evidence,
coupled with the district court’s evidentiary errors, deprived Leal Del-Carmen
of a fair trial and his constitutional right to present a defense. This right
includes, at a minimum, the right to put before a jury evidence that might
influence the determination of guilt. Because we’ve found a violation of the
right to present a defense, we must reverse the guilty verdict unless the
government convinces us the error was harmless beyond a reasonable doubt. We’re
not convinced.” Id. at *8 (internal
citation and quotations omitted).

Of Note: The Chief’s palpable frustration stems
from settled law on the removal of exculpatory material witnesses. Id. at *1. So sharp is this frustration
that Chief Judge Kozinski characterizes a government argument as “close to the
classic definition of chutzpah.”Id.
at *7.

Beyond the sheer enjoyment of a good Kozinski opinion, however, the case
is worth a close read for important holdings on discovery. That great 2010 Stever opinion figures prominently in
the CJ’s analysis -- Leal-Del Carmen
joins Stever in the Ninth’s line of admirable
law on the Sixth Amendment right to present a defense. See generally here.

How to
Use: Do you think it odd that the border agents
interviewed only four of these alien
witnesses – but (allegedly) not the eight
others in the group? The Ninth does too. Id.
at *1 n.3 (“We find it suspicious that the government would interview some of
the witnesses but not the others.”)

Happily, the government is now ordered to give all statements of all
witnesses, or sworn declarations from
the agents explaining what really happened, and
declarations describing what interview notes or recordings have been discarded
or destroyed. Id.The orders of footnote
three are a welcome template for attacks on cherry-picked interviews -- a
template that would convert nicely to a proposed order in district court.

For
Further Reading: The progressive Fourth Circuit (?!?) is
ahead of the Ninth in the correct interpretation of the important “acceptance
of responsibility” guideline, USSG § 3E1.1. The Ninth has unfortunately held
that the government can withhold the third point (designed to protect trial resources) if a defendant pleads guilty
and preserves an appeal.

We’re on the
wrong side of a 2-1 circuit split, but three jurists have just invited a
petition for rehearing en banc. United States v. Vanegas-Ortiz No. 12-10135 (9th Cir. Sept. 7, 2012) (mem.), available here:

OBJECT
when a client pleads to preserve an appeal and is denied a reduction of the
third offense level for acceptance. For a history of this issue in the Ninth,
see collection of blogs here.

Poster of Churchill from http://artofmanliness.com/2009/09/30/motivational-posters-winston-churchill-edition-part-i/